Ocean and Coastal Management Law in a Nutshell
Authors:
Christie, Donna R. / Telesetsky, Anastasia
Edition:
5th
Copyright Date:
2019
17 chapters
have results for maritime or admiralty
Chapter VI Oil Pollution, Oil Spill Liability and the Deepwater Horizon 88 results (showing 5 best matches)
- Admiralty jurisdiction is present because the alleged tort occurred upon navigable waters of the Gulf of Mexico, disrupted maritime commerce, and the operations of the vessel bore a substantial relationship to traditional maritime activity. With admiralty jurisdiction comes the application of substantive maritime law.
- Traditional state common law torts of negligence, nuisance, and strict liability may be available sources of liability for spills of oil or hazardous substances in some circumstances. However, in the ocean and coastal context, if a cause of action is based on a maritime tort, admiralty law, must be applied as the substantive law.
- The admiralty jurisdiction of federal courts for maritime torts is not exclusive. Maritime tort actions may be brought in federal courts under diversity jurisdiction or in state courts, but regardless of the venue or how the tort is characterized, maritime law is still controlling unless displaced by a specific federal statute. State law has been held to be applicable in some limited situations where there are substantive gaps in maritime law. In addition, states may “create rights and liabilities with respect to conduct within their borders, when the state action does not run counter to federal laws or the essential features of an exclusive federal jurisdiction.” . But, in general, maritime law leaves few gaps in the regime for maritime torts that occur on the OCS and in the EEZ for state law to fill. The application of substantive maritime law has had significant ramifications in limiting both the amount and scope of a spiller’s liability.
- Admiralty Jurisdiction and the Maritime Nexus
- [A] party seeking to invoke federal admiralty jurisdiction pursuant to over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water. The connection test raises two issues. A court, first, must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce. Second, a court must determine whether the general character of the activity giving rise of the incident shows a substantial relationship to traditional maritime activity.
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Chapter VIII Protection of Special Marine Areas and Marine Cultural Heritage 45 results (showing 5 best matches)
- United States’ admiralty jurisdiction extends not only to U.S. waters and U.S. vessels, but in the case of maritime casualties, also to U.S. and other shipwrecks in faraway locales beyond any nation’s territorial jurisdiction. If a part of the shipwreck, the res, is brought into a U.S. federal court, the court can exercise constructive in rem jurisdiction over the wreck itself based on the presence within the judicial
- Historically, the most fundamental conflict in cases of shipwrecks found within state boundaries concerns whether federal admiralty law preempts state salvage or archaeological recovery laws. Although a majority of states had long ago enacted legislation asserting ownership or the authority to regulate and manage historic shipwrecks, courts have failed to settle the question of whether such statutes are enforceable. See
- , where four members of the plurality and four dissenters had agreed that Treasure Salvors could not sue Florida in federal admiralty court to recover property owned by the state without the state’s consent. In that case, however, the state official was found to have acted beyond his authority and the state did “not have even a colorable claim to the artifacts.” Subsequent cases found federal courts to have no in rem admiralty jurisdiction where the state presents a “colorable claim” to the wreck. See, e.g.,
- comprehensively reviews the federal maritime law applicable to the term “abandonment.” Abandonment can be express or by inference. Neither lapse of time alone nor the owner’s failure to return to a shipwreck site necessarily establishes abandonment, but these aspects do contribute to circumstantial evidence from which abandonment may be inferred. The case specifically addressed the issue of the burden of proof borne by the party asserting abandonment under the ASA and found: “The uniform rule in admiralty is that a finding of abandonment requires proof by clear and convincing evidence.”
- Even when the application of federal maritime and admiralty law is clear, questions persist concerning whether the law of salvage or the law of finds applies to such shipwrecks. Under the law of finds, a finder who takes possession and exercises control over lost or abandoned property acquires title. In the case of ancient shipwrecks, some courts have rejected the legal fiction of salvage law that the “owner intends to return” and the application of salvage law. See, e.g.,
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Index 35 results (showing 5 best matches)
Outline 16 results (showing 5 best matches)
Chapter XI The United Nations Convention on the Law of the Sea (UNCLOS) and the United States 143 results (showing 5 best matches)
- An island can independently generate maritime zones, but in some cases can also be a basepoint that might be used in defining the maritime zones. An island is a “naturally formed area of land, surrounded by water, which is above water at high tide.” (UNCLOS, art. 121(1)). An island is distinguished from a rock through its capacity to sustain human habitation or economic life. (Id., art. 121(3).
- vessels involved in maritime casualties threatening or causing major pollution and damage to a coastal country or its resources (UNCLOS, art. 221); and
- For a complete list of maritime claims and the U.S. position regarding specific claims, see U.S. Navy Judge Advocate General’s Corps,
- The U.S. is also party to numerous interdiction agreements, mostly with nations in the wider Caribbean area, for cooperation in regard to maritime drug enforcement. See Department of State, United States Maritime Law Enforcement Agreements, available at
- With the proliferation of 200-mile EEZs and claims to extended continental shelves, overlapping maritime boundary claims have become common. A major part of the docket of the ICJ comprises maritime boundary disputes. UNCLOS article 74(1)
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Table of Cases 3 results
Chapter VII Pollution and the Marine Environment 30 results (showing 5 best matches)
- The intentional discharge of dredged spoil, sewage sludge, and industrial wastes into the ocean probably constitutes about ten percent of the pollutants in the ocean. Eighty to ninety percent of the deliberately dumped material is dredged spoil from navigation, waterway, and harbor projects. As much as ten percent of dredged materials are contaminated with oil, heavy metals, and organochlorine compounds. Industrial wastes may be obvious sources of hazardous or toxic contaminants, but sewage sludge may also contain heavy metals and organic chemicals. Ocean disposal has not only contributed to the general degradation of the marine environment, but also has direct effects on habitats and organisms at dumpsites. See Maritime Affairs: A World Handbook 240–41 (Edgar Gold ed., 2d ed. 1991).
- , and the 1973 Protocol (Intervention Convention), gave parties emergency response power beyond territorial waters. This treaty gives contracting parties the authority to “take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty . . . which may reasonably be expected to result in major harmful consequences.”
- (upholding California regulations that require ships engaged in international and interstate commerce to use specific low-sulfur fuels whenever they are going to or from California ports or travelling within twenty-four miles of the California coastline. The Supreme Court denied certiorari based on a brief requested from the Solicitor General recommending denial in spite of the apparent conflict with the U.S. “paramount authority to regulate maritime commerce,” because the California regulations are “largely consistent” with federal requirements and would “be overtaken” by federal requirements to implement the ECA.) See also
- the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping[.]
- The 1969 International Convention on Civil Liability for Oil Pollution Damage (CLC), done Nov. 29, 1969, S. Exec. Doc. G, 91st Cong., 2d Sess. 19 (1970), 9 I.L.M. 45, 973 U.N.T.S. 3, provides a legal basis for claims for damages to the territorial sea or coast of a nation. Shipowners are strictly liable for damages from an oil spill subject to certain defenses, such as an act of war, an act of God, or the act or omission of a third party. If the shipowner establishes that the spill occurred without his fault or privity, the CLC creates a limitation on liability and requires that all ships carrying over 2000 tons of oil have financial security or insurance to the limit of liability under the Convention. Claims under the CLC provide an exclusive remedy. But see ...remedy and allows recovery only in the courts of countries that suffered the pollution damage or took steps to prevent it). The flag state is responsible for certifying that a vessel meets the financial responsibility...
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Chapter XII The Future of United States Ocean and Coastal Policy in a Changing Climate 9 results (showing 5 best matches)
- . . . to ensure the protection, maintenance, and restoration of the health of ocean, coastal, and Great Lakes ecosystems and resources, enhance the sustainability of ocean and coastal economies, preserve our maritime heritage, support sustainable uses and access, provide for adaptive management to enhance our understanding of and capacity to respond to climate change and ocean acidification, and coordinate with our national security and foreign policy interests.
- President Obama’s Executive Order 13457. Even though the words “environmental interests” are in the title, the new Executive Order prioritizes ocean resource use and does not address climate change, ecosystem-based management or ocean acidification. President Trump’s policy has shifted national attention from long-term resource stewardship to short-term resource use. “Climate change” is never mentioned directly or indirectly in President Trump’s executive order.
- When laws have assigned responsibilities to public and private actors, such as, not to pollute, implementation has been limited or non-existent. The pursuit of rights at the expense of responsibilities has had visible and invisible consequences on ocean health ranging from depleted ecosystems to ubiquitous microplastics. This generation has a non-derogable duty to be accountable for harm to the oceans. While we may have made technological advances in the form of certain types of aquaculture or ocean energies, all states must take legal measures to ensure the conservation and restoration of coastal and ocean spaces. This is likely to require a different mentality. As States jockey for position in promoting sustainable “blue economy” and “blue growth”
- As of 2013, coastal shore adjacent counties communities were home to 118.4 million people or approximately 37% of the U.S. population. These counties (which make up 18% of the U.S. land area) generate 43% of the U.S. GDP. Increases in storm surge and heavy precipitation will have impacts on coastal ecosystems and coastal economies. Coastal real estate alone accounts for $1 trillion USD of wealth.
- The Recommendations of the Task Force focused on five priority areas or “areas of special emphasis”—resiliency and adaptation to climate change and ocean acidification; regional ecosystem protection and restoration; water quality and sustainable practices on land; changing conditions in the Arctic; and ocean, coastal, and Great Lakes observations, mapping, and infrastructure. Focusing on these areas was intended to provide for better informed
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Introduction 2 results
- . . . to ensure the protection, maintenance, and restoration of the health of ocean, coastal, and Great Lakes ecosystems and resources, enhance the sustainability of ocean and coastal economies, preserve our maritime heritage, support sustainable uses and access, provide for adaptive management to enhance our understanding of and capacity to respond to climate change and ocean acidification, and coordinate with our national security and foreign policy interests.
- The failure of Congress to implement this policy by legislative mandate or dedicated funding left the future of U.S. oceans policy vulnerable. On June 19,
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Chapter I Public and Private Rights in the Coastal Zone 56 results (showing 5 best matches)
- Public trust lands have generally been described as lands beneath navigable waters. However, the term “navigable” has no plain meaning in law and can only be defined in its statutory or common law context. In England, navigable waters were apparently those affected by the ebb and flow of the tide. See , the U.S. Supreme Court extended admiralty jurisdiction beyond tide waters to all waters of “navigable character.” In
- rejected or merely supplemented, the English ebb and flow of the tide test for defining the scope of navigable waters for state title purposes. (“The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters.” and are owned by the state. The U.S. Supreme Court agreed that cases extending the definition of navigability to all waters that are navigable in fact did not withdraw application of admiralty jurisdiction and the public trust doctrine from waters subject to the ebb and flow of the tide. As a matter of
- Shorelines are rarely stable and are subject to constant, gradual change from natural processes and human activities. Storms and flooding may drastically change the character of the coast in a very short time. Most states consider the legal boundary, as well as the physical water boundary, ambulatory. A littoral owner may gain or lose land affected by the processes of accretion, erosion, avulsion, or reliction.
- Lands under tide waters are incapable of cultivation or improvement in the manner of lands above high water mark. They are of great value to the public for the purposes of commerce, navigation and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right. Therefore the title and the control of them are vested in the sovereign for the benefit of the whole people.
- [t]hose rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.
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Chapter III Management Framework for Ocean and Coastal Resources 53 results (showing 5 best matches)
- Any claim heretofore or hereafter asserted either by constitutional provision, statute, or otherwise, indicating the intent of a State so to extend its boundaries is hereby approved and confirmed, without prejudice to its claim, if any it has, that its boundaries extend beyond that line. Nothing in this section is to be construed as questioning or in any manner prejudicing the existence of any State’s seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.
- State administrative review for consistency with the management program of all development plans, projects, or land and water use regulations, including exceptions and variances thereto, proposed by any State or local authority or private developer, with power to approve or disapprove after public notice and an opportunity for hearings.
- within or outside
- [t]he term “effect on any coastal use or resource” means any reasonably foreseeable effect on any coastal use or resource resulting from a Federal agency activity or federal license or permit activity (including all types of activities subject to the federal consistency requirement under subparts C, D, E, F and I of this part.) Effects are not just environmental effects but include effects on coastal uses. Effects include both direct effects which result from the activity and occur at the same time and place as the activity, and indirect (cumulative and secondary) effects which result from the activity and are later in time or farther removed in distance but are still reasonably foreseeable. Indirect effects are effects resulting from the incremental impact of the federal action when added to other past, present, and reasonably foreseeable actions, regardless of what person(s) undertake(s) such actions.
- any authorization that an applicant is required by law to obtain in order to conduct activities affecting any land or water use or natural resource of the coastal zone and that any Federal agency is empowered to issue to an applicant. The term . . . does not include OCS plans, and federal license or permit activities described in detail in OCS plans . . . or leases issued pursuant to lease sales conducted by a Federal agency (e.g., outer continental shelf (OCS) oil and gas lease sales conducted by the Minerals Management Service [now BOEM] or oil and gas lease sales conducted by the Bureau of Land Management). Lease sales conducted by a Federal agency are Federal agency activities under subpart C of [the CZMA].
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Chapter V Ocean Energy and Marine Minerals Management 58 results (showing 5 best matches)
- DOI has the express power to temporarily suspend or cancel leases if the lessee fails to comply with the terms of the lease, or “if there is a threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life) . . . or to the marine, coastal, or human environment.” . A lease may be canceled only after suspension for a continuous period of five years and a hearing in which the Secretary determines that continuation would cause serious harm to the marine, coastal, or human environment and that the threat of harm will not be abated in a reasonable period. If a lease is canceled, the lessee is entitled to compensation based on the fair value of the canceled rights or the expenses incurred by the lessee, whichever is less. Moreover, a lease may be forfeited and canceled for failure to comply with the OCSLA, its regulations, or the lease conditions.
- Governors of affected states are given several opportunities to review and comment on the proposed leasing program both before and after publication of the proposed program in the Federal Register. An “affected state” includes: (1) a state connected to an artificial island or structure; (2) a state that will receive OCS oil for processing or transshipment; (3) a state designated by the Secretary of Interior because of the probability of significant impact or damage to the coastal, marine, or human environment from OCS development; or (4) a state that the Secretary finds is subject to considerable risk from oil spills, blowouts, or other releases because of such factors as prevailing winds or currents. . The Secretary must reply to the governors in writing, explaining his decision to grant or deny the governors’ requested program modifications. The submission of the lease
- , requires federal agencies to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat . . . determined by the Secretary . . . to be critical.” ESA § 7(d), , prohibits any agency or applicant from making “any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.” In
- DOI must disapprove or require modification of a development plan if it is determined that the lessee has failed to demonstrate compliance with applicable laws, that the activities threaten national security or defense, or that the activities pose serious harm to life (including aquatic life), property, or to the marine, coastal, or human environment.
- to take into consideration other uses of the sea or seabed, including use for a fishery, a sea lane, a potential site of a deepwater port, or navigation;
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Chapter IX Fisheries Management: State, National and Foreign waters 59 results (showing 5 best matches)
- comprised of persons engaging in the harvest or processing of fishery resources in that specific region or subregion or who otherwise own or operate businesses substantially dependent upon a fishery.
- Overfishing of fish stocks shared by the United States, for which there are no applicable international conservation or management measures or in areas with no applicable international fishery management organization or agreement, that has adverse impacts on such stocks; or,
- -type jurisdiction for vessels registered in a state operating beyond state waters where: (1) the state laws are consistent with any applicable federal FMP, laws, or regulations, or there is no applicable federal FMP, laws, or regulations; or (2) a federal FMP delegates management to the state and the state laws are consistent with the FMP. Issues have arisen involving federal preemption and other constitutional challenges, the statutory meaning of “registered” and “consistent”, and state enforcement mechanisms.
- While most FMPs are developed by RFMCs, the Secretary has independent authority to prepare FMPs for Atlantic highly migratory species, and in a limited number of other circumstances. Id. § 1854. For example, the Secretary has the discretion to prepare an FMP when a Council fails to develop and submit a plan for a fishery requiring management “after a reasonable period” and when a Council fails to resubmit a revised plan or amendment after the Secretary has disapproved or partially disapproved the plan or amendment. Id. § 1854(c). Further, when an RMFC is notified that a fishery is overfished by NOAA Fisheries and the RFMC does not submit a plan for rebuilding an overfished fishery within two years of notification, the Secretary of Commerce is required to prepare a plan or plan amendment.
- Fishing activity that has a significant adverse impact on seamounts, hydrothermal vents, cold water corals and other vulnerable marine ecosystems located beyond any national jurisdiction, for which there are no applicable conservation or management measures, including those in areas with no applicable international fishery management organization or agreement.
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Chapter X Preserving the Biodiversity of the Seas 58 results (showing 5 best matches)
- Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical. . . .
- “No prohibitions or restrictions . . . whether made effective through quotas, import or export licenses or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party. . . .”
- After initiation of consultation . . . the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources . . . which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures. . . .
- The MMPA may authorize the issuance of permits to take or import marine mammals for a public display to applicants who offer “a [public] program for education or conservation purposes . . . based on professionally recognized standards of the public display community.” depleted. “Depleted” means that the population is below OSP or that the species is listed as endangered or threatened under the Endangered Species Act. Id. § 1362(1). If a species is listed as threatened or endangered under the Endangered Species Act (ESA), a scientific research or enhancement permit is necessary for the marine mammal to be held at a public display facility.
- The United States also argued that the embargo was justified by exceptions under Article XX(b) and XX(g) which allow trade measures “necessary to protect human, animal or plant life or health” and “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.” The panel found that neither provision had been intended to apply extraterritorially. Application of such measures beyond a nation’s jurisdiction would undermine the free trade regime, allowing nations to unilaterally dictate environmental policies to other countries and derogate from GATT on the basis of nonuniform protection of persons, animals, or resources. Even if the provisions of Article XX(b) and XX(g) could apply to animals or resources beyond U.S. jurisdiction, the panel found that they were inapplicable to the tuna embargo. The United States did not demonstrate that the embargo was “necessary,” because there...
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Chapter IV Management and Regulation of Coastal Development 59 results (showing 5 best matches)
- There are two primary approaches that have been taken to manage development on the coasts. First, because federal, state and local government subsidies and infrastructure spending have stimulated coastal growth, withholding such governmental support for development in coastal areas may provide an indirect means of controlling development. Resources can be directed toward infrastructure that optimizes coastal resilience. In addition, growth can be regulated directly through land use planning and by strictly regulating or prohibiting structures that will contribute to destruction of habitat or erosion of the shore, that will cause damage to public resources or other private property, or that will be located in unsafe or unstable areas.
- Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts—by adjacent landowners (or other uniquely affected persons) under the State’s law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or
- Government infrastructure spending to protect vulnerable areas from storm impacts and floods, such as New Orleans’ system of levees, also leads to development in sensitive or dangerous areas of the . The court read the FCA’s immunity provisions broadly, recognizing “immunity for any flood-control activity engaged in by the government, even in the context of a project that was not primarily or substantially related to flood control.” Id. The DFE bars suit on any claim that is “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”
- Although proven engineered shore protection measures exist, there are no quick, simple, or inexpensive ways to protect the shore from natural forces, to mitigate the effects of beach erosion, or to restore beaches, regardless of the technology or approach selected. Available shore protection measures do not treat some of the underlying causes of erosion, such as relative rise in sea level and interruption of sand transport in the littoral systems, because they necessarily address locale-specific erosion problems rather than their underlying systemic causes.
- an analysis of, among other things, the degree of harm to public lands and resources, or adjacent private property, posed by the claimant’s proposed activities, the social value of the claimant’s activities and their suitability to the locality in question, and the relative ease with which the alleged harm can be avoided through measures taken by the claimant and the government (or adjacent landowner) alike.
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Chapter II Public Access to Beaches and Shores 31 results (showing 5 best matches)
- Legislation or regulations creating new rights of public access to or across private lands to facilitate exercise of public trust use of beaches and waters is subject to challenge as a taking of private property by authorizing a permanent physical invasion. See, e.g., . However, many states have statutes designed to protect existing public access and to mitigate the impacts of shoreline activities on existing access. For example, a Florida statute prohibits development or construction that interferes with public accessways created to the MHWL through public use, dedication, or other means unless a comparable, approved alternative accessway is provided.
- Beach access statutes and public access conditions on development have been subject to continual challenges alleging that such access requirements are unconstitutional conditions or 5th amendment takings of property, particularly when the owner’s right to exclude is implicated. In some instances, the public’s right of access may even preclude any development of a parcel of property, reducing its value to the point that the owner may also base a takings claim on the severe or total reduction in the value of the property.
- The notion of establishing a prescriptive easement by public use is conceptually problematic. It can be argued that seasonal use by diverse members of the public can never meet the requirements of continuous or exclusive use. See, e.g., . Beachfront owners have also maintained that because it is impossible to bring an ejectment or trespass action against the general public, the public should not be able to gain rights through prescription. See, e.g.,
- The means generally exercised to express one’s purpose or intention to dedicate his lands to the public use are by a (1) written instrument executed for that purpose; (2) filing a plat or map of one’s property designating thereon streets, alleys, parks, etc., (3) platting one’s lands and selling lots and blocks pursuant to said plat indicating there in places for parks, streets, public grounds, etc., (4) recitals in a deed by which the rights of the public are recognized; (5) oral declarations followed by acts consistent therewith; (6) affirmative acts of the owner with reference to his property such as throwing it open in a town, fencing and designating streets thereon; (7) acquiescence of the owner in the use of his property by the public for public purposes. [
- Dedication by Acquiescence or Adverse Use
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- Publication Date: September 23rd, 2019
- ISBN: 9781642425550
- Subject: Ocean and Coastal Law
- Series: Nutshells
- Type: Overviews
- Description: With an increase in fishing, energy extraction, and shipping activity, U.S. ocean and coastal areas are under increasing pressures from even more intensive use and development. This Nutshell, now in its 5th Edition, provides short summaries of state, national, and international law and policy relevant to practitioners and academics interested in the field of ocean and coastal law. The most recent edition, updating legal developments from previous editions, also offers new material on renewable energy, current beach access controversies, the Deepwater Horizon oil spill litigation, coastline adaptation to sea-level rise, climate change, marine litter, international law of the sea negotiations, and policy changes under President Trump’s administration.